What the Trump Administration Bodes For Employers

With President-elect Donald Trump set to take office in little over a month, employers are almost certain to face a much different regulatory climate.

While Walter White, of Breaking Bad fame, may not be taking the helm of the DEA (at least we think) as the Saturday Night Live wags claimed, plenty of other changes are afoot.

Certainly, businesses can expect a more collaborative relationship with government agencies such as the Department of Labor, National Labor Relations Board (NLRB) and Equal Employment Opportunity Commission (EEOC). But uncertainty abounds about what’s in store for the Affordable Care Act (ACA) and more.

On a recent XpertHR webinar and podcast, we delved into what Trump’s surprise victory means for employers as a practical matter. Here are some key takeaways from our panelists:

Is the Affordable Care Act a Goner?

President-elect Trump spoke openly during the highly-contentious campaign of fully repealing the ACA if elected. But in interviews with 60 Minutes and The Wall Street Journal shortly after the election, he stopped short of that promise. For instance, he told CBS News’ Leslie Stahl that he would consider leaving elements of the healthcare law in place, including:

Forcing insurers to cover people with pre-existing health conditions; and

Allowing parents to cover children under their plans into their mid-20s.

But actions ultimately speak louder than words. And Trump’s choice to head the Department of Health and Human Services, Georgia Rep. Tom Price, has been a vocal critic of the ACA from the start, leaving little doubt that the ACA will be in his crosshairs, according to XpertHR Legal Editor Marta Moakley.

In a statement, Trump called Price “exceptionally qualified to shepherd our commitment to repeal and replace Obamacare and bring affordable healthcare to every American.” Doesn’t sound like the ACA has much of a future in its present form.

Proskauer Rose attorney Anthony Oncidi, who heads the labor and employment law practice group at the firm’s Los Angeles office, said a major overhaul is coming and suggested that it’s possible employers will see interstate sale of health insurance plans as a replacement.

Employee-side attorney Andrew Friedman, of Helmer Friedman, predicts the Republican-controlled Congress will immediately repeal the ACA in the new year, but offered a rather interesting take. “The Republicans are going to repeal but delay the effective date on that repeal for years. They’re going to try to kick this can down the road as long as they can because they have absolutely no idea how to replace it.”

2. What the Future Holds For Agency Enforcement

All of our panelists forecast that employers can expects a less aggressive stance from the Department of Labor (DOL), the National Labor Relations Board and the EEOC than the previous eight years. That’s certainly true at the DOL, where fast-food CEO Andrew Puzder has been nominated to head the agency.

Puzder has been a staunch opponent of the Obama administration’s new overtime rule, arguing it would force employers to reduce hours, salaries or bonuses. That stance suggests that the DOL will not continue its appeal of a preliminary injunction against the overtime rule, issued last month by a federal court in Texas, after the President-elect takes office. Any increase of the federal minimum wage with the incoming Congress is also highly unlikely.

The results of the 2016 election also will be felt strongly at the US Supreme Court, where Republicans successfully blocked President Obama’s nomination of Merrick Garland from coming to a vote. President-elect Trump is expected to choose a successor to Justice Antonin Scalia by the time of his January 20 inauguration or very shortly afterwards. That selection almost certainly will shift the balance of the Court and impact employers.

For instance, Oncidi notes that the Court may seek to revisit the issue of public employee unions being able to collect dues from nonunion members for collective bargaining purposes.

In Friedrichs v. California Teachers Association, the Court heard arguments on that very issue and seemed poised to deal a significant setback to unions. However, Justice Scalia’s February 2016 death occurred before the Court could rule. Without his decisive vote, the case deadlocked 4-4 and left a Ninth Circuit Court of Appeals decision intact in the public employee union’s favor. Once the Supreme Court is back at full strength, Oncidi predicts the Court will look to hear a similar case.

He also forecasts that the nation’s highest court could address the enforceability of class action waivers in employment cases after a Trump-appointed justice comes aboard.

4. Good Fences Make Good Neighbors

With apologies to Robert Frost fans, the much-discussed potential wall between the US and Mexico was a major focal point of the campaign. But will it come to fruition in the Trump administration? And more importantly, what will the future hold for undocumented workers, or for businesses seeking workers from abroad?

While building a wall could prove problematic, Oncidi does predict Congress will move toward passing a law requiring mandatory use of the federal E-Verify system in all 50 states to confirm the work eligibility of new hires. Currently, E-Verify is mandated for most or all private employers in only eight states.

Moakley said, “HR is interested in filling positions with the most qualified workers, even if that means taking a job search across borders.” However, she notes that the popular H1B visa program could be under fire since Trump has hinted he will limit the program. That said, any changes would take time and potentially require congressional approval.

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